Understanding Clinical Negligence: When Might You Have Grounds to Make a Claim?.

Put simply, clinical negligence can occur when a healthcare provider fails to provide an appropriate standard of care and, as a result, a patient suffers harm or injury.

It is important not to assume that clinical negligence has occurred because something unexpected has happened or treatment has been unsuccessful. In bringing a claim, you must satisfy legal tests which are discussed briefly below.

If you are thinking about approaching a Clinical Negligence Department regarding a potential claim, it might be helpful to consider the following questions.

What has happened and to whom?

It is important to identify what you consider has gone wrong. For example, was there a surgical mistake, a delay in diagnosis, a failure to adequately monitor, or a failure to provide appropriate treatment?

You should also consider who any potential claim may be against. In cases involving NHS treatment, the appropriate defendant will often be the relevant NHS Trust or Health Board rather than an individual doctor or healthcare professional. Similarly, in cases involving treatment provided by a GP practice, the practice may be the appropriate defendant.

You should also be clear about who has suffered harm. This could be you personally or a family member. There are also specific rules concerning claims brought on behalf of someone who has died or who lacks the mental capacity to conduct legal proceedings.

Was the care below a reasonable standard?

It is well-established that a healthcare professional owes their patient a legal duty of care. A key question is whether that duty was breached.

A breach of duty may occur where the care provided fell below the standard reasonably expected of a competent healthcare professional in the relevant field and circumstances. The law does not require perfect or “gold standard” of care. Instead, the circumstances of the case and the professional standards applicable at the time will be considered, rather than assessing the care with the benefit of hindsight.

There may be more than one reasonable approach to treating a patient. The fact that another healthcare professional might have done something differently does not, by itself, establish negligence.

Did this cause harm or make an existing condition worse?

It is also necessary to consider causation. This means asking whether the breach of duty caused the injury or loss being claimed, or whether it materially contributed to an existing condition becoming worse.

Causation can sometimes be more difficult to establish than identifying what went wrong. A healthcare professional may have made an error, for example, but if the same injury would have occurred even with appropriate treatment, there may be no compensable loss arising from that breach.

The standard of proof in clinical negligence claims is the balance of probabilities. This means that the court must be satisfied that something was more likely than not to have occurred.

What evidence is needed?

Evidence is important in establishing both breach of duty and causation. Examples include medical records, complaints and responses, investigation reports, photographs, witness evidence and expert medical opinion. Phone call logs and text messages are also of great value especially when version of events differ to contemporaneous records.

How long do I have to bring a claim?

In England and Wales, a three-year limitation period applies to a clinical negligence claim. Depending on the circumstances, this may run from the date of the negligent treatment or from the date of which the claimant first had the necessary knowledge of the injury and its potential connection with the treatment.

There are specific rules concerning claims involving children, people who lack mental capacity and claims following a person’s death.

The court has a limited discretion to allow a claim to proceed where the usual limitation period has expired.

When should I get legal advice?

If you think that you may have a claim, you can make an enquiry with a firm of solicitors. Seeking legal advice at an early stage can help avoid potential limitation issues. Also obtaining early legal advice can help you understand whether you may have grounds for a claim and what next steps to take.

An initial account of what has happened will be taken and the firm will consider whether there may be a basis for investigating a claim. They may then advise that they are willing to investigate the matter further, or that they are unable to take the case forward.

If you do not wish to seek legal advice immediately, you may wish to request a copy of your own medical records to review or consider making a complaint to the healthcare provider.

What happens after I contact a solicitor?

Usually, a solicitor will arrange an initial discussion to obtain further information, explain the next steps and explore options for funding the claim.

In terms of investigating the claim, your medical records will be requested and reviewed. Independent medical experts are likely to be instructed to consider whether the legal tests for breach of duty and causation are satisfied.

Counsel (barristers) might be involved to assess the evidence and advise on the prospects of the claim, particularly where the issues are complex.

Here at Lanyon Bowdler our specialist Clinical Negligence Team have the knowledge and experience to assess your enquiry. If you wish to discuss bringing a claim and would like a free consultation please do get in touch via the ‘contact us’ button below or by telephone on: 0800 652 3371.